Digital Downloads, Access Codes, and US Copyright Law

Abstract

There has been much controversy, and, of course, litigation, regarding the legal status of uploading and downloading music and video files via mp3.com, Napster, and other file-sharing services or software. In addition, there is a great deal of uncertainty regarding the difference between decryption of copy code for purposes of 'access' and purposes of 'copying'. In recent cases in the USA, courts have (1) found mp3.com liable for infringement, (2) found Napster liable for infringement, and (3) held that the posting of DeCSS, software to defeat the copy code used on DVD videos, was an infringement. This paper will address the legal issues related to mp3.com, Napster, and DeCSS by discussing the Digital Millennium Copyright Act, the Audio Home Recording Act and the 'fair use' doctrine. In doing so, it examines arguments presented by various sides and presents the author's views on the scope and interpretation of the various statutes. In addition, it explores whether traditional concepts of 'rights' and liability should apply, and whether expanded use of compulsory licenses, blanket licenses, and/or subscription models of distribution are fitting in the electronic age. Finally, the question of whether a contract model of distribution for content is at odds with the guiding principles of copyright law is analyzed.